Texas Const. Rentals, Inc. v. Harrison, 4563

Citation410 S.W.2d 482
Decision Date29 December 1966
Docket NumberNo. 4563,4563
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
PartiesTEXAS CONSTRUCTION RENTALS, INC., Appellant, v. Gerard A. HARRISON, Appellee. . Waco

Hutcheson, Taliaferro & Hutcheson, J. Philip Wandel, William G. Wilson, Houston, for appellant.

Fred W. Moore, Houston, for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Texas Construction, from a judgment for plaintiff Harrison, in a suit for breach of an express warranty of a Caterpillar tractor, sold by defendant to plaintiff.

Plaintiff sued defendant alleging that defendant entered into an agreement orally and in writing with plaintiff, to sell plaintiff a used D8 Caterpillar tractor (plus equipment) for $16,000; that such agreement set out certain repairs defendant was to make to the tractor, and warranted the tractor would be in 'excellent operating condition'; that plaintiff believed and relied on defendant's warranty which induced plaintiff to purchase the tractor; that plaintiff informed defendant he was purchasing the tractor to clear a certain 1200 acre tract of land prior to a date upon which plaintiff was obligated to clear same; that the tractor was not delivered in excellent operating condition; that plaintiff had to make some $9,104 repairs to the tractor; and rent another tractor for $1800 to work during such period of repair; that the tractor as delivered was worth only $4,000. Plaintiff prayed for damages in the amount of repairs and rental; and alternatively for the difference in the value of the tractor as delivered and the purchase price, plus the rental of the other tractor.

Trial was to a jury which found:

1) The tractor was not in excellent condition at the time it was delivered.

2) The reasonable cost of repairs necessary to place the tractor in excellent operating condition was $8,000.

3) The reasonable market value of the tractor as delivered was $10,000.

4) The reasonable rental value of the tractor rented to work while the purchased tractor was being repaired was $1260.

5) Selmer A. Larson did not accept delivery of the tractor.

The trial court overruled plaintiff's and defendant's motions for instructed verdict; overruled plaintiff's motion for judgment for the costs of repairs; and entered judgment for plaintiff for $7260 (difference in price and value of the tractor, plus the reasonable rental value of the rented tractor).

Defendant appeals on 11 points, contending:

1) The trial court erred in overruling defendant's motion for instructed verdict, in that plaintiff failed to prove the reasonable market value of the tractor as delivered was less than $16,000.

2) The jury findings do not support a judgment for plaintiff.

3) Issue 4 should not have been submitted; and the finding is grossly excessive.

4) The finding of the jury in Issue 8 is against the overwhelming weight and preponderance of the evidence.

5) Plaintiff's counsel made improper jury argument which requires reversal.

Plaintiff, by cross points, asserts he was entitled to judgment for $9260, (the cost of repairs plus the cost of additional tractor rental) instead of the $7260 awarded by the trial court.

Plaintiff purchased a used timber moving D8 Caterpillar tractor from defendant for $16,000. Defendant orally and in writing agreed to make certain repairs to the tractor 'to put this machine in excellent operating condition.' Some repairs were made and defendant delivered the tractor to plaintiff. After some 90 hours of work the tractor broke down. Plaintiff notified defendant and defendant offered to make some repairs which were not satisfactory with plaintiff. Plaintiff had $9104 repairs made to the tractor; and rented another tractor to do work clearing timber while the purchased tractor was being repaired.

Defendant's first contention is that the trial court erred in overruling its motion for instructed verdict, in that plaintiff failed to prove the value of the tractor was less than $16,000. After the trial court overruled defendant's motion, defendant elected not to stand on such motion, but proceeded with the introduction of his evidence. In such situation defendant waives his motion, and if thereafter as here, the evidence from all sources is sufficient, the defendant cannot contend the trial court should have sustained his motion....

To continue reading

Request your trial
18 cases
  • Jackson v. Jackson
    • United States
    • Texas Court of Appeals
    • June 18, 1971
    ...motion is denied the moving party must stand on the ruling or he waives the alleged error. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Waco, Tex.Civ.App., 1966, ref., n.r.e.); Travelers Insurance Company v. Arnold, 378 S.W.2d 78 (Dallas, Tex.Civ.App., 1964, no writ hist.);......
  • McElreath v. McElreath
    • United States
    • Texas Court of Appeals
    • September 16, 1976
    ...452 S.W.2d 49, 52 (Tex.Civ.App.-San Antonio 1970, writ ref'd n.r.e.); Texas Construction Rentals, Inc. v . Harrison, 410 S.W.2d 482, 484 (Tex.Civ.App.-Waco 1967, writ ref'd n.r.e.); St. Louis Southwestern Ry. Co. of Texas v. Douthit, 208 S.W . 201, 204 (Tex.Civ.App.-Dallas 1919, writ ref'd)......
  • Hamill v. Brashear
    • United States
    • Texas Court of Appeals
    • July 15, 1974
    ...issue, the movant cannot contend that the trial court should have sustained his motion. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.). In this connection, '(T)he question of whether the evidence raises the issue of plaintiff's righ......
  • Shoppers World v. Villarreal
    • United States
    • Texas Court of Appeals
    • January 30, 1975
    ...by the trial court, the defendant, by proceeding with his evidence, waives his motion. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.); Robb v. Gilmore, 302 S.W.2d 739 (Tex.Civ.App.--Fort Worth 1957, writ ref'd n.r.e.). Such was done......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT